Citation Nr: 0626436
Decision Date: 08/24/06 Archive Date: 09/01/06
DOCKET NO. 04-43 999 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease of the lumbar spine.
2. Entitlement to service connection for loss of teeth.
3. Entitlement to service connection for benign prostatic
hypertrophy.
4. Entitlement to service connection for testicle swelling.
5. Entitlement to service connection for circulation
problems of the feet.
6. Entitlement to a rating in excess of 30 percent for the
residuals of a shell fragment wound to the right thigh with
neuropathy of the right saphenous nerve.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and Spouse
ATTORNEY FOR THE BOARD
T. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
November 1950 to November 1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 rating decision by the
Columbia, South Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA). In October 2005, the
veteran testified at a video conference hearing before the
undersigned Veterans Law Judge. A copy of the transcript of
that hearing is of record.
The Board notes that at his hearing in October 2005 the
veteran withdrew his claims for entitlement to increased
ratings for a right knee scar with retained fragments, for a
left calf scar, and for a perineum scar with traumatic
rupture of the urethra. To the extent the veteran's June
2005 correspondence raises the issue of error in a 1954
rating decision, this matter is referred to the RO for
appropriate action.
The issues of entitlement to service connection for
degenerative disc disease of the lumbar spine, benign
prostatic hypertrophy, testicle swelling, circulation
problems of the feet, and entitlement to a rating in excess
of 30 percent for the residuals of a shell fragment wound to
the right thigh with neuropathy of the right saphenous nerve
are addressed in the REMAND portion of the decision below and
are REMANDED to the RO via the Appeals Management Center
(AMC), in Washington, DC.
FINDINGS OF FACT
1. VA has made all reasonable efforts to assist the
appellant in the development of the claim addressed in this
decision and has sufficiently notified him of the information
and evidence necessary to substantiate this claim.
2. The evidence demonstrates the veteran's loss of teeth was
not incurred as a result of combat or service trauma.
3. The veteran was not a prisoner of war during service, his
service-connected disabilities are not rated as totally
disabling, he has no adjudicated service-connected
compensable dental disability or dental disorder clinically
determined to be complicating a medical disorder currently
being treated by VA, and he is not a VA vocational
rehabilitation trainee.
CONCLUSION OF LAW
The veteran's claimed loss of teeth was not incurred as a
result of active service, and the criteria for entitlement to
VA outpatient dental treatment have not been met.
38 U.S.C.A. §§ 1110, 1712, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.381, 17.161 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). In this case,
the veteran was notified of the VCAA duties to assist and of
the information and evidence necessary to substantiate his
claims by correspondence dated in June 2004. Adequate
opportunities to submit evidence and request assistance have
been provided.
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (hereinafter "the Court") in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the
VCAA notice requirements applied to all elements of a claim.
Here, the notice requirements pertinent to the issue
addressed in this decision have been met and all identified
and authorized records relevant to this matter have been
requested or obtained. Because of the decision in this case,
any failure of VA to notify the veteran of the duty to notify
and duty to assist in a claim involving a disability rating
and an effective date for the award of benefits is harmless
error. The Board finds the available medical evidence is
sufficient for an adequate determination. Further attempts
to obtain additional evidence would be futile. There has
been substantial compliance with all pertinent VA law and
regulations, and to move forward with this claim would not
cause any prejudice to the appellant.
Service Connection Claim
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. § 3.303 (2005).
VA law provides that treatable carious teeth, replaceable
missing teeth, dental or alveolar abscesses, and periodontal
disease will be considered service-connected solely for the
purpose of establishing eligibility for outpatient dental
treatment, and rating action should consider each defective
or missing tooth and each disease of the teeth and
periodontal tissues separately to determine whether the
condition was incurred or aggravated in line of duty during
active service and, when applicable, to determine whether the
condition is due to combat or other in-service trauma, or
whether the veteran was interned as a prisoner of war.
38 U.S.C.A. § 1712 (West 2002); 38 C.F.R. § 3.381 (2005).
The following, however, will not be considered service-
connected for treatment purposes: (1) calculus; (2) acute
periodontal disease; (3) third molars, unless disease or
pathology of the tooth developed after 180 days or more of
active service, or was due to combat or in-service trauma;
and (4) impacted or malposed teeth, and other developmental
defects, unless disease or pathology of these teeth developed
after 180 days or more of active service. 38 C.F.R.
§ 3.381(e).
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4, provides compensable disability ratings for
the loss of teeth due to the loss of substance of the body of
the maxilla or mandible. See 38 C.F.R. § 4.150, Diagnostic
Code 9913 (2005). It is noted that these ratings apply only
to bone loss through trauma or disease such as osteomyelitis
and not to the loss of the alveolar process as a result of
periodontal disease.
Veterans having a service-connected noncompensable dental
condition determined to be the result of combat wounds or
other service trauma are also eligible for VA dental care on
a Class II(a) basis. 38 U.S.C.A. § 1712(b)(1)(C); 38 C.F.R.
§ 17.161(c). For these purposes, the term "service trauma"
does not include the intended effects of therapy or
restorative dental care and treatment provided during a
veteran's military service. See VA O.G.C. Prec. Op. No. 5-
97, 62 Fed. Reg. 15,566 (1997); see also 38 C.F.R.
§ 3.306(b)(1) (2005).
The Court has held that VA law contains no provision
regarding eligibility for outpatient dental treatment based
on a service department's failure to properly care for a
serviceperson's dental needs. See Boggs v. Nicholson, No.
04-0303, 2006 Vet. App. WL 1725982 (Vet. App. May 25, 2006).
Class II(b) or (c) dental outpatient treatment eligibility,
extends to veterans having a service-connected noncompensable
dental condition or disability and who were detained or
interned as prisoners of war. 38 C.F.R. § 17.161(d), (e).
Other categories of eligibility under 38 U.S.C.A. § 1712(b)
and 38 C.F.R. § 17.161 include veterans having a dental
condition clinically determined to be complicating a medical
condition currently being treated by VA, veterans whose
service-connected disabilities are rated as totally
disabling, and some veterans who are Chapter 31 vocational
rehabilitation trainees. 38 C.F.R. § 17.161(g), (h), (i).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) has held that a veteran seeking disability
benefits must establish the existence of a disability and a
connection between service and the disability. Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
The Court has held that where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. Grottveit v. Brown, 5 Vet.
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App.
492 (1992). The Federal Circuit has recognized the Board's
"authority to discount the weight and probity of evidence in
light of its own inherent characteristics and its
relationship to other items of evidence." Madden v. Gober,
125 F.3d 1477, 1481 (Fed. Cir. 1997).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102 (2005).
In this case, the evidence of record shows the veteran's
enlistment examination in November 1950 revealed missing
teeth at upper right number 8, upper left number 8, lower
right number 6, and lower left number 6. Restorable carious
teeth were noted at upper right numbers 6 and 7 and upper
left number 6. Dental records show carious teeth were
treated in July 1951 and October 1951. Records show the
veteran sustained shell fragment wounds to the lower part of
his body in June 1951 and a penetrating gunshot wound to the
right thigh in September 1951. Reports of the veteran's
injuries are indicative of no dental trauma. The October
1953 separation physical examination noted that teeth 17, 19
and 31 were absent, and tooth 12 had a restorable tooth. No
other defects or diseases were noted.
A January 1954 VA examination of the mouth including gross
dental findings was negative.
In his August 2004 notice of disagreement the veteran
asserted his loss of teeth were caused by bad blood as a
result of wounds received in action. He testified in October
2005, in essence, that his teeth had been lost because
fillings he received during service were done poorly. He
stated he had no fillings in his teeth prior to an explosion
associated with the shell fragment injuries he sustained, but
reported no dentist had ever related the problems with his
teeth to that explosion.
Based upon the evidence of record, the Board finds the
veteran's loss of teeth was not incurred as a result of
combat or service trauma. There is no evidence of any
specific dental trauma during active service and no competent
evidence demonstrating the loss of teeth as a residual of
wounds sustained during combat. The January 1954 VA
examination is persuasive that no gross dental abnormalities
were present at that time. The evidence also shows the
veteran does not meet the eligibility requirements for
outpatient dental treatment. He was not a prisoner of war
and he does not meet the criteria for eligibility for either
Class II(b) or (c), his service-connected disabilities are
not rated as totally disabling, he has no adjudicated
service-connected compensable dental disability or dental
disorder clinically determined to be complicating a medical
disorder currently being treated by VA, and he is not a VA
vocational rehabilitation trainee.
While the veteran may believe his loss of teeth was incurred
as a result of service, he is not a licensed medical
practitioner and is not competent to offer opinions on
questions of medical causation or diagnosis. Grottveit, 5
Vet. App. 91; Espiritu, 2 Vet. App. 492. Therefore, the
Board finds entitlement to service connection, to include for
the purposes of outpatient dental treatment, must be denied.
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
the claim in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001). The preponderance of the
evidence is against the veteran's claim.
ORDER
Entitlement to service connection for loss of teeth is
denied.
REMAND
As noted above, there has been a significant recent change in
VA law. The veteran was notified of the evidence not of
record that was necessary to substantiate his claims and of
which parties were expected to provide such evidence by
correspondence dated in June 2004.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a
claim. Upon a review of the file, it appears that this case
must be remanded for proper notice to the veteran under
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
The Board notes the revised VCAA duty to assist requires that
VA make reasonable efforts to assist the claimant in
obtaining evidence necessary to substantiate a claim and in
claims for disability compensation requires that VA provide
medical examinations or obtain medical opinions when
necessary for an adequate decision. See 38 C.F.R. § 3.159.
VA has a duty to assist the veteran which includes conducting
a thorough and contemporaneous medical examination. See
Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
In the case of a veteran who engaged in combat with the enemy
in active service VA shall accept as sufficient proof of
service-connection any disease or injury alleged to have been
incurred in or aggravated by such service satisfactory lay or
other evidence of service incurrence or aggravation of such
injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service. 38 U.S.C.A. § 1154(b) (West
2002); 38 C.F.R. § 3.304(d) (2005).
Pertinent case law also provides that 38 U.S.C.A. § 1154(b)
does not create a presumption of service connection for a
combat veteran's alleged disability, and that the veteran is
required to meet his evidentiary burden as to service
connection such as whether there is a current disability or
whether there is a nexus to service which both require
competent medical evidence. See Collette v. Brown, 82 F.3d
389, 392 (1996).
In this case, service medical records show the veteran was
wounded in action by an enemy hand grenade in June 1951 with
injuries to the perineum, laceration of the bulbous urethra,
penetrating left calf wound, and penetrating right knee
wound. Hospital reports also noted that he was treated for
acute left epididymitis. Records show that in November 1951
he sustained a through and through wound to the right thigh
with nerve damage. VA medical records include diagnoses of a
history of benign prostatic hypertrophy and degenerative
joint disease of the lumbosacral spine without opinion as to
etiology. A diabetic foot examination in July 2005 revealed
diminished sensation, but provided no opinion as causation.
In statements and personal hearing testimony the veteran
asserted, in essence, that he had degenerative disc disease
of the lumbar spine as a result of trauma to the low back at
the time of his combat-related injuries. He stated he had
been blown against a tree by the concussion of the explosion.
He also claimed that he had benign prostatic hypertrophy,
testicle swelling, and circulation problems of the feet which
he believed were a result of his combat-related injuries. As
these matters have not been addressed by specific VA
examination, the Board finds additional medical opinions are
required.
As to the veteran's claim for entitlement to a rating in
excess of 30 percent for the residuals of a shell fragment
wound to the right thigh with neuropathy of the right
saphenous nerve, it is significant to note that VA
regulations prohibit the assignment of separate muscle injury
ratings with peripheral nerve paralysis ratings of the same
body part, unless the injuries affect entirely different
functions. See 38 C.F.R. § 4.55(a) (2005). Records show the
veteran is presently rated under the criteria for injury to
muscle group XIV with functions acting upon the hip and knee;
however, the medical evidence notes nerve injuries variously
identified as to the sciatic, internal popliteal, and common
peroneal nerves (November 2, 1951) and show he underwent
neurectomy of the right saphenous nerve (July 15, 1952). In
light of the veteran's claims as to diminished neurologic
function in the right lower extremity, the Board finds that
additional development is also required as to this matter
prior to appellate review.
In addition, subsequent to the issuance of the statement of
the case additional VA medical records were submitted
pertinent to the veteran's claims. As the veteran has not
waived agency of original jurisdiction consideration of this
evidence, these matters must be remanded for additional
development. 38 C.F.R. § 20.1304(c) (2005).
Accordingly, the case is REMANDED for the following action:
1. The RO is to provide the veteran a
corrective VCAA notice under 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b), that
includes an explanation as to the
information or evidence needed to
establish a disability rating and
effective date for the claims(s) on
appeal, as outlined by the Court in
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. The RO should contact the veteran and
obtain the names and addresses of all
medical care providers who treated the
veteran for disabilities of the lumbar
spine, prostate, testicles, circulatory
disorders of the feet, or for residuals
of a shell fragment wound of the left
thigh since September 2005. After the
veteran has signed the appropriate
releases, those records should be
obtained and associated with the claims
folder. All attempts to procure records
should be documented in the file. If the
RO cannot obtain records identified by
the veteran, a notation to that effect
should be inserted in the file. The
veteran and his representative are to be
notified of unsuccessful efforts in this
regard, in order to allow the veteran the
opportunity to obtain and submit those
records for VA review. After the veteran
has signed the appropriate releases,
those records should be obtained and
associated with the claims folder. All
attempts to procure records should be
documented in the file. If the RO cannot
obtain records identified by the veteran,
a notation to that effect should be
inserted in the file. The veteran and
his representative are to be notified of
unsuccessful efforts in this regard, in
order to allow the veteran the
opportunity to obtain and submit those
records for VA review.
3. The veteran should be scheduled for
appropriate VA examinations for opinions
as to whether there is at least a
50 percent probability or greater (at
least as likely as not) that he has a
chronic low back disorder, benign
prostatic hypertrophy, testicle swelling,
or circulation problems of the feet as a
result of injuries sustained during
combat. An opinion should also be
obtained as to the current nature and
severity of his service-connected
residuals of a shell fragment wound to
the right thigh with neuropathy of the
right saphenous nerve, to include a
discussion of the specific functions
affected by the muscle and nerve injuries
incurred.
All indicated tests and studies are to be
performed. Prior to the examination, the
claims folder must be made available to
the physician for review of the case. A
notation to the effect that this record
review took place should be included in
the report.
Opinions should be provided based on the
results of examination, a review of the
medical evidence of record, and sound
medical principles. All examination
findings, along with the complete
rationale for all opinions expressed,
should be set forth in the examination
report.
4. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications, including the address
where the notice was sent must be
associated with the claims folder. The
veteran is to be advised that failure to
report for a scheduled VA examination
without good cause shown may have adverse
effects on his claims.
5. After completion of the above and any
additional development deemed necessary,
the issues remaining on appeal should be
reviewed. If any benefit sought remains
denied, the veteran and his
representative should be furnished a
supplemental statement of the case and be
afforded the opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs